Grounds for attacking an order are different from substantial question of law evolved in the appeal=Under Section 125 of the Electricity Act, 2003, an appeal to this Court lies only when there is a substantial question of law, as required for a second appeal under Section 100 of Code of Civil Procedure, 1908. Though the appellant has raised 34 questions, they are actually grounds for attacking the appellate order. Grounds for attacking an order are different from substantial question of law evolved in the appeal. On appreciation of the correspondence between the parties during the subsistence of the agreement, both the Commission and the Appellate Tribunal have held against the appellant. We, thus, do not find any substantial question of law so as to exercise our jurisdiction under Section 125 of the Electricity Act, 2003.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5919 OF 2013


WARDHA POWER CO. LTD.                   ...  APPELLANT(S)

                                   VERSUS

MAHARASHTRA STATE ELECTRICITY
DISTRIBUTION CO. LTD. AND ANR.          ...  RESPONDENT(S)



                               J U D G M E N T


KURIAN, J.


The appellant is aggrieved  by  the  concurrent  findings  recorded  by  the
Maharashtra Electricity Regulatory Commission (in  short  ’the  Commission’)
and the Appellate Tribunal for Electricity (in short ‘the Tribunal’).

The appellant had entered into an agreement to generate and supply power  to
Respondent No.1.  Since the appellant could not keep up the  time  schedule,
it made an adhoc arrangement for purchase of power from other sources.

Whether such adhoc supply should be at  the  actual  cost  incurred  by  the
appellant or at the agreed  rate  for  the  generated  power  is  the  short
question.

Interpreting the terms of the agreement and the  communications  in-between,
the Commission as well as the Tribunal,  after  elaborately  discussing  the
entire evidence, have rendered a concurrent finding against  the  appellant.
The specific understanding between the parties was that being a bidder,  who
has agreed to supply power from the source  of  generation,  can  claim  the
Power Purchase Agreement (in short  ‘PPP’)  rates  only  for  the  generated
power. For the delayed generation,  to  avoid  the  penalty,  appellant  was
permitted to make  adhoc  arrangements  by  purchase  of  power  from  other
sources.  In case the rates  for  purchased  power  is  less  than  the  PPA
agreement rates, appellant can claim only  that.   For  the  delayed  supply
from the generating sources, while  purchasing  power  from  other  sources,
appellant cannot trade  and  make  any  unjust  enrichment.   Moreover,  the
communication with the respondent  would  also  indicate  that  it  was  the
understanding between the parties.

Under Section 125 of the Electricity Act, 2003,  an  appeal  to  this  Court
lies only when there is a substantial question of law,  as  required  for  a
second appeal under Section 100 of Code of Civil  Procedure,  1908.   Though
the appellant has  raised  34  questions,  they  are  actually  grounds  for
attacking the appellate order. Grounds for attacking an order are  different
from substantial question of law evolved in the appeal. On  appreciation  of
the correspondence  between  the  parties  during  the  subsistence  of  the
agreement, both the Commission and the Appellate Tribunal have held  against
the appellant.

We, thus, do not find any substantial question of law so as to exercise  our
jurisdiction under Section 125 of the Electricity Act, 2003.

The appeal is, accordingly, dismissed.

No order as to costs.


                                                    ......................J.
                                                             (KURIAN JOSEPH)




                                                    ......................J.
                                                     (ROHINTON FALI NARIMAN)
New Delhi,
September 7, 2016.
ITEM NO.2               COURT NO.10               SECTION XVII

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  5919/2013

WARDHA POWER CO LTD                                Appellant(s)

                                VERSUS

MAHARASHTRA ST.ELECT.DISTRN.CO.LTD.&ANR.           Respondent(s)

(With appl.(s) for directions and permission to file additional documents
and permission to place additional documents on record)
(For final disposal)

Date : 07/09/2016 This appeal was called on for hearing today.

CORAM :
         HON'BLE MR. JUSTICE KURIAN JOSEPH
         HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For Appellant(s)
                        Mr. Jayant Bhushan, Sr.Adv.
                        Ms. Sangeeta Bharti, Adv.
                        Mr. Krishanu Adhikary, Adv.
                      Ms. Richa Kapoor,Adv.

For Respondent(s)
                        Mrs. Deepa Chawan, Adv.
                        Mr. Nirav Shah, Adv.
                        Ms. Ramni Taneja, Adv.
                       Mr. Anil Shrivastav,Adv.

          UPON hearing the counsel the Court made the following
                             O R D E R

            This appeal is dismissed in terms of the signed judgment.
            Pending applications, if any, stand disposed of.

         [RENU  DIWAN]              [SUKHBIR  PAUL  KAUR]          ASSISTANT
REGISTRAR           A.R.-CUM-P.S.

      (Signed reportable judgment is placed on the file)
-----------------------
4

no necessity to take the sanction.= Where the public servant had abused the office which he held in the check period but had ceased to hold “that office” or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.= these two appellants are that after conducting spot inspection by accused No.1 on 17.01.2003, first appellant (accused No.3) who was working as Tehsildar had recommended it on same day and thereafter second appellant (accused No.6) who was working as Assistant Commissioner had given an endorsement on the very next day to the effect that property is not the subject matter of acquisition. On this basis, it is alleged that these officials have abused their official position. We may record that learned counsel for the appellants have contended that they merely acted on the court decree. However, it may be two innocent explanation on the facts of this case as alleged in the case inasmuch as it is alleged that these two appellants did not bother to find out that there were two decrees in two different names in respect of same land and further that 10 acres of land in question had already been acquired and could not be the subject matter of decree. These were the aspects which were, prima facie, to be looked into by these appellants. On the basis the aforesaid purported defence, therefore, the proceedings cannot be quashed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 721 OF 2016


|L. NARAYANA SWAMY                          |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF KARNATAKA & ORS.                  |.....RESPONDENT(S)           |


                                   W I T H

                       CRIMINAL APPEAL NO. 722 OF 2016



                               J U D G M E N T


A.K. SIKRI, J.

                 Before adverting to the  question  of  law  that  has  been
raised in these appeals (which is common to both the cases), we  would  like
to traverse through the facts and  the  background  which  has  led  to  the
filing of the present appeals.

2.    Respondent No.2 (hereinafter referred to as the  'complainant')  filed
a complaint on the basis of which a case has  been  registered  against  the
appellants, who are accused Nos. 3 and 5, for the offences punishable  under
Section 13(1)(d) read with Section 13(2) of  the  Prevention  of  Corruption
Act, 1947 (for short, 'P.C. Act') and Sections  120(b),  427,  447  and  506
read with Section 34 of the Indian Penal Code, 1860.  The complaint  of  the
complainant contained the following allegations:

One Smt. Amararnmal was the original owner of immovable  property  measuring
259.95 acres in Survey No. 597-B  and  an  area  measuring  57.30  acres  in
Survey No. 601-A of Bellari, having purchased the same from  the  Government
of India under a registered sale deed dated January 19, 1940, registered  in
the office of the Sub-Registrar,  Bellari.   The  complaint  further  states
that one Smt. Akula Lakshmamma and her children had  obtained  money  decree
against one Pitarnbara Modaliyar and in the execution  of  the  said  decree
the decree holder purchased the land measuring  27.25  acres  through  court
and, thus, became owner of the said property which  is  situated  at  Survey
No. 597-B. Out of this 27.25 acres of land, an area measuring  10  acres  of
land was later acquired by the Government for forming high  level  canal  by
Thungabhadra Project.  However, the revenue authorities failed to  demarcate
the remaining extent of land measuring 17.25 acres which forced  Smt.  Akula
Lakshmamma and her children to file a  suit  seeking  mandatory  injunction.
In the meantime, they  sold  the  said  17.25  acres  of  land  to  one  Mr.
Parameshwara Reddy, father-in-law of Mr.  Gali  Janardhana  Reddy.   On  the
same day, i.e. on October 24, 2002, Smt. Akula  Lakshmamma  and  her  family
members also entered into an agreement for sale with accused  No.6  (Mr.  B.
Sriramulu) for an area measuring 27.25 acres, which  included  10  acres  of
land that had already been acquired by the Government.  Thus,  accused  No.6
entered into agreement for sale even in respect of the acquired land.   More
over, accused No.6 and Mr. Gali Janardhana  Reddy  are  close  friends  and,
therefore, there was no reason to hold that accused No.6 was  not  aware  of
the transaction between Smt. Akula Lakshmamma and  Mr.  Parameshwara  Reddy.
Accused No.6 filed a  suit  for  specific  performance  based  on  the  said
agreement to sell in which ex-parte decree dated April 08, 2003 came  to  be
passed.  On April 21, 2003, Mr. Parameshwara  Reddy  (with  whom  the  first
agreement to sell was entered into) sought for change of  land  use  (though
in respect of this very land accused No.6 had  filed  a  suit  for  specific
performance).  The then Deputy  Commissioner  accorded  his  permission  for
change of land use vide order dated June 17, 2003.   After  this  conversion
order, Mr. Parameshwara Reddy gifted the entire land measuring  17.25  acres
in faour of his daughter, Smt. Gali Laxmi Aruna, w/o.  Mr.  Gali  Janardhana
Reddy vide gift deed dated March 21, 2006.  It is alleged that accused  No.6
was fully aware of these facts.  Notwithstanding the same, on the  basis  of
the ex-parte decree of  specific  performance  obtained  by  him,  he  filed
execution petition and obtained the sale deed from the court in  respect  of
the entire 27.25 acres of land.  It was notwithstanding the  fact  that  out
of this 27.25 acres of land, in respect of which accused No.6  obtained  the
sale deed, 17.25 acres was claimed by Mr. Parameshwara  Reddy  as  well  and
has been gifted to his daughter and the remaining 10 acres of land had  been
acquired by the Government.  Not only this, accused No.6  also  applied  for
conversion of use of this very land and the authorities passed the order  of
conversion in his  favour  as  well.   As  on  the  date  of  the  order  of
conversion, accused No.6 was holding the post of Cabinet  Minister.   It  is
alleged that because of this reason he could obtain the order of  conversion
by exerting influence on the revenue authorities.   Accused  Nos.  3  and  5
(appellants herein)  are  the  Government  officials  working  as  Assistant
Commissioner and Deputy Director of Land Records respectively.   In  respect
of the Government officials,  it  is  alleged  that  accused  No.1,  Revenue
Inspector, had conducted spot inspection on January 17, 2011; accused  No.3,
who is the Tehsildar, had recommended case for conversion on  the  same  day
and  accused  No.5,  who  is  the  Assistant  Commissioner,  had  given   an
endorsement to accused No.6  on  the  very  next  day  to  the  effect  that
property in question is not the subject  matter  of  acquisition.   On  this
basis, it is alleged that all the officials aided accused  No.6  by  abusing
their official position.  We  may  state  at  this  stage  itself  that  the
appellants cannot argue that there are no allegations against  them  in  the
complaint warranting taking cognizance qua them.
            On the basis of the aforesaid allegations, prayer  was  made  in
the complaint to secure the presence of accused persons  and  the  complaint
be referred to  the  Karnataka  Lokayukta  Police  for  investigation  under
Section  156(3)  of  the  Code  of  Criminal  Procedure,  1973  (for  short,
'Cr.P.C.') since the case required investigatory powers to  unearth  several
other documents relating to the case.

The District and Sessions Judge, Bellari passed order dated  June  14,  2003
on the said complaint thereby referring the same to  the  Police  Inspector,
Karnataka Lokayukta Police, Bellary for further investigation under  Section
156(3) of Cr.P.C.  The jurisdictional police registered the  aforesaid  case
as Crime No. 9/2013 under Section 13(1)(d) read with Section  13(2)  of  the
P.C. Act and Sections 120(b), 427, 447 and 506 read with Section 34  of  the
Indian Penal Code, 1860.  The  appellants  herein,  along  with  four  other
persons, filed Criminal Petition No. 10864 of 2013 before the High Court  of
Karnataka seeking quashing of  the  said  proceedings.   In  this  petition,
order dated July 08, 2013 was passed observing that during the  pendency  of
the matter, since the Police had filed a  final  report,  those  petitioners
were at liberty to challenge the final report before the trial court.

According to the appellants, this order was passed  by  the  High  Court  on
erroneous statement made by the counsel as  neither  the  investigation  was
completed nor  final  report  was  filed  in  the  court.  Therefore,  these
appellants filed another  Criminal  Petition  No.  101017  of  2014  seeking
quashing of the entire proceedings.  In the petition, the grounds  taken  by
the appellants were that there was no allegation of any corrupt practice  in
the entire  complaint  insofar  as  they  are  concerned.   It  was  further
submitted that before directing further investigation under  Section  156(3)
of Cr.P.C. and taking cognizance of the complaint, the  trial  court  should
have satisfied itself that due sanction, as required  under  Section  19  of
the P.C. Act read with Section 190 of the Cr.P.C.,  has  been  obtained  and
since  no  such  sanction  was  obtained,  such   an   order   for   further
investigation could not have been passed by the trial court.
            It may be mentioned that at the time of  filing  the  complaint,
the appellants had  been  transferred  from  the  offices  which  they  were
holding by virtue of their promotion.  However, they submitted that even  on
transfer  they  continued  to  hold  the  public  office   and,   therefore,
requirement of obtaining sanction was mandatory.

The High Court has, however, brushed aside the aforesaid  contentions  taken
by the appellants and dismissed the petition  filed  by  them.   Though  the
petition before the High Court was filed jointly  by  the  appellants,  they
had chosen to file separate appeals  in  this  Court  challenging  the  said
judgment.  That is how these two appears filed by them  are  aimed  at  same
impugned judgment passed by the High Court.

With this factual background, we advert to the questions of law  that  arise
for consideration:
(1) Whether an order directing further investigation  under  Section  156(3)
of the Cr.P.C. can be passed in relation to public servant  in  the  absence
of valid sanction and contrary to the judgments of this Court in Anil  Kumar
& Ors. v. M.K. Aiyappa & Anr.[1] and Manharibhai Muljibhai Kakadia and  Anr.
v. Shaileshbhai Mohanbhai Patel and Ors.[2]?

(2)  Whether  a  public  servant  who  is  not  on  the  same  post  and  is
transferred (whether by way of  promotion  or  otherwise  to  another  post)
loses the protection  under  Section  19(1)  of  the  P.C.  Act,  though  he
continues to be a public servant, albeit on a different post?

Since requirement of obtaining sanction is contained  in  Section  19(1)  of
the P.C. Act, it would be proper to reproduce the same.  For  our  purposes,
reproduction of sub-section (1) of Section 19 of the P.C. Act shall  suffice
which we reproduce hereinbelow:
“19.  Previous sanction necessary for prosecution.—(1)  No court shall  take
cognizance of an offence punishable under sections 7,  10,  11,  13  and  15
alleged to have  been  committed  by  a  public  servant,  except  with  the
previous sanction [save as otherwise provided in the Lokpal  and  Lokayuktas
Act, 2013]—

(a)  in the case of a person who is employed in connection with the  affairs
of the Union and is not removable from  his  office  save  by  or  with  the
sanction of the Central Government, of that Government;

(b)  in the case of a person who is employed in connection with the  affairs
of a State and is not  removable  from  his  office  save  by  or  with  the
sanction of the State Government, of that Government;

(c)  in the case of any other person, of the authority competent  to  remove
him from his office.”


As is clear from the plain language  of  the  said  Section,  the  Court  is
precluded from taking “cognizance” of  an  offence  under  certain  sections
mentioned in this  provision  if  the  prosecution  is  against  the  public
servant, unless previous sanction of the Government (Central  or  State,  as
the case may be) has been obtained.  What is relevant for  our  purposes  is
that this Section bars taking of cognizance of an offence.  The question  is
whether it will cover within its sweep order directing  investigation  under
Section 156(3) of the Cr.P.C?   High  Court  has  taken  the  view,  in  the
impugned judgment, that bar is from taking cognizance which would not  apply
at the stage of investigation by  investigating  officer.   It  is  observed
that sanction is required only after investigation and that too when,  after
investigation,  it  is  found  that  there  is  substantial  truth  in   the
investigation report as to what amounts to cognizance of offence.  The  High
Court has referred to Section 190  of  the  Cr.P.C.  which  stipulates  that
cognizance of an offence is to be taken under three contingencies  viz.  (a)
upon receiving a complaint of facts which constitute such  offence,  or  (b)
on the basis of  police  report  stating  such  facts  which  constitute  an
offence or upon information received  from  any  person  other  than  police
officer, or (c) suo moto when Magistrate acquires that such an  offence  has
been committed.  This position is clearly discernible from  the  reading  of
Section 190 of the Cr.P.C. and we extract the same hereinbelow:
“190.  Cognizance  of  offences  by  Magistrates.-   (1)  Subject   to   the
provisions of this Chapter, any Magistrate  of  the  first  class,  and  any
Magistrate of the second class specially empowered in this behalf under Sub-
Section (2), may take cognizance of any offence-

1.  upon receiving a complaint of facts which constitute such offence;
2. upon a police report of such facts;
3. upon information received from any person other than  a  police  officer,
or upon his own knowledge, that such offence has been committed.

(2)  The Chief Judicial Magistrate may empower any Magistrate of the  second
class to take cognizance under sub-section  (1)  of  such  offences  as  are
within his competence to inquire into or try.”

When a complaint is received, the Court records preliminary evidence of  the
complainant on the  basis  of  which  it  satisfies  itself  as  to  whether
sufficient evidence is placed on record which  may  prima  facie  constitute
such offence. Likewise, Police report is filed under Section 173(2)  of  the
Cr.P.C. on the completion of  investigation  and  on  perusal  thereof,  the
Magistrate satisfies himself about the facts which constitute such  offence.
 Similar is the position in the third contingency.  On this basis, the  High
Court has opined that since prior sanction is required only at the  time  of
taking cognizance which stage comes much after the investigation is  ordered
under Section 156(3)  of  Cr.P.C.  at  the  stage  of  giving  direction  to
investigate into the complaint, such a sanction is not required.

The above view taken by the High Court is contrary to the judgments of  this
Court in Manharibhai Muljibhai  Kakadia  and  Anil  Kumar.   In  Manharibhai
Muljibhai Kakadia, the facts were that the respondent filed before  the  CJM
a criminal complaint alleging that the appellant  had,  by  doing  the  acts
stated, committed the offences punishable under Sections 420, 467, 468,  471
and 120-B IPC.  The CJM, in exercise of his power under Section 202 CrPC  by
his order dated 18.06.2004 directed an  enquiry  to  be  made  by  a  police
inspector.  The investigating  officer  investigated  into  the  matter  and
submitted a compliant summary report opining that no offence was  made  out.
The CJM on 16.04.2005 accepted that  report  and  dismissed  the  complaint.
The respondent complainant filed a criminal revision  petition  thereagainst
under Section 397 read with Section 401 CrPC before  the  High  Court.   The
appellants  then  made  an  application   seeking   their   impleadment   as
respondents in the revision proceedings so that they could be heard  in  the
matter.  On 05.08.2005, the High Court dismissed that application.   Against
that order, appeal was heard by special leave.  This  Court  set  aside  the
order of the High Court permitting the appellants to  be  impleaded  in  the
revision proceedings.  The Court took note  of  the  provisions  of  Cr.P.C.
i.e. Section 202, which does not permit an accused person  to  intervene  in
the course of inquiry by the Magistrate.  However, it  was  held  that  even
while directing inquiry, the Magistrate applies his  judicial  mind  on  the
complaint and, therefore, it  would  amount  to  taking  cognizance  of  the
matter.  In this context, the Court explained the word “cognizance”  in  the
following manner:
“34. The word “cognizance” occurring in various sections in the  Code  is  a
word of wide import. It embraces within itself all powers and  authority  in
exercise  of  jurisdiction  and  taking  of  authoritative  notice  of   the
allegations made in the complaint or a  police  report  or  any  information
received that an offence has been committed.  In  the  context  of  Sections
200, 202 and 203, the expression “taking cognizance” has been  used  in  the
sense of taking notice of the complaint or the first information  report  or
the information that  an  offence  has  been  committed  on  application  of
judicial mind. It does not necessarily mean issuance of process.”

Second judgment in the case of Anil Kumar referred to above is  directly  on
the point.  In that case, identical question had  fallen  for  consideration
viz. whether sanction under Section 19 of the P.C. Act  is  a  pre-condition
for ordering investigation against a public servant under Section 156(3)  of
Cr.P.C. even  at  pre-cognizance  stage?   Answering  the  question  in  the
affirmative, the  Court  discussed  the  legal  position  in  the  following
manner:
“13. The expression “cognizance” which appears in Section 197 CrPC  came  up
for consideration before a three-Judge Bench of this Court in State of  U.P.
v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S)  200],  and  this
Court expressed the following view: (SCC pp. 375, para 6)

“6. … ‘10. … And the jurisdiction of a Magistrate to take cognizance of  any
offence is provided by Section 190 of the  Code,  either  on  receipt  of  a
complaint, or upon a police report or upon  information  received  from  any
person other than a police officer, or upon his knowledge that such  offence
has been committed. So far as public servants are concerned, the  cognizance
of any offence, by any court, is barred by Section 197 of  the  Code  unless
sanction is  obtained  from  the  appropriate  authority,  if  the  offence,
alleged to have been committed, was in discharge of the official  duty.  The
section not only specifies the persons to whom the  protection  is  afforded
but it also specifies the conditions and circumstances in which it shall  be
available and the effect  in  law  if  the  conditions  are  satisfied.  The
mandatory character of the  protection  afforded  to  a  public  servant  is
brought out by the expression, ‘no  court  shall  take  cognizance  of  such
offence except with the previous  sanction’.  Use  of  the  words  ‘no’  and
‘shall’ makes it abundantly clear that the bar on the exercise of  power  of
the court to take cognizance of any offence is absolute  and  complete.  The
very cognizance is barred. That is, the complaint  cannot  be  taken  notice
of.  According  to Black's  Law  Dictionary  the  word  ‘cognizance’   means
‘jurisdiction’ or ‘the exercise  of  jurisdiction’  or  ‘power  to  try  and
determine causes’. In common parlance, it means taking notice of.  A  court,
therefore, is precluded from entertaining a complaint or  taking  notice  of
it or exercising jurisdiction if it is in respect of a  public  servant  who
is accused of an offence alleged to have been committed during discharge  of
his official duty.’ [Ed.: As observed  in  State  of  H.P.  v.  M.P.  Gupta,
(2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539.] ”

14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC  684  :  1995  SCC  (Cri)
266] , this Court has observed as follows:

“13. It is necessary to mention here that taking cognizance  of  an  offence
is not the same thing as issuance of process. Cognizance  is  taken  at  the
initial stage when the Magistrate applies his judicial  mind  to  the  facts
mentioned in a complaint or to a police report or upon information  received
from any other person that an offence has been committed.  The  issuance  of
process is at a subsequent stage when after considering the material  placed
before it the court decides to proceed against the offenders against whom  a
prima facie case is made out.” [Ed.: As considered in State of Karnataka  v.
Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.]

The meaning of the said expression was also  considered  by  this  Court  in
Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041  :  (2012)
2 SCC (L&S) 666] .

15.  The judgments referred to hereinabove clearly indicate  that  the  word
“cognizance” has a wider connotation and  is  not  merely  confined  to  the
stage of taking cognizance of the offence. When a  Special  Judge  refers  a
complaint for investigation under Section 156(3)  CrPC,  obviously,  he  has
not taken cognizance of the offence and, therefore, it is  a  pre-cognizance
stage and cannot be equated  with  post-cognizance  stage.  When  a  Special
Judge takes cognizance  of  the  offence  on  a  complaint  presented  under
Section 200 CrPC and the next step  to  be  taken  is  to  follow  up  under
Section 202 CrPC. Consequently, a  Special  Judge  referring  the  case  for
investigation under Section 156(3) is at pre-cognizance stage.

                         xxx         xxx        xxx

21.  The learned Senior Counsel appearing  for  the  appellants  raised  the
contention that the requirement of sanction is  only  procedural  in  nature
and hence, directory or else Section 19(3)  would  be  rendered  otiose.  We
find it difficult to accept that contention. Sub-section (3) of  Section  19
has an object to achieve, which applies in  circumstances  where  a  Special
Judge has already rendered a finding, sentence or order. In such  an  event,
it shall not be reversed or altered by a court in  appeal,  confirmation  or
revision on the ground of absence of sanction. That does not mean  that  the
requirement to obtain sanction is not a mandatory requirement.  Once  it  is
noticed that there  was  no  previous  sanction,  as  already  indicated  in
various judgments referred  to  hereinabove,  the  Magistrate  cannot  order
investigation against a public servant while invoking powers  under  Section
156(3) CrPC. The above  legal  position,  as  already  indicated,  has  been
clearly spelt out in Paras Nath Singh [(2009) 6  SCC  372  :  (2009)  2  SCC
(L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri)  1041
: (2012) 2 SCC (L&S) 666] cases.”


            Having regard to the ratio of the aforesaid  judgment,  we  have
no hesitation in answering the question of law,  as  formulated  in  para  7
above, in the negative.  In other words, we hold  that  an  order  directing
further investigation under Section 156(3) of the Cr.P.C. cannot  be  passed
in the absence of valid sanction.

With this, we now address  the  second  question  i.e.  whether  the  public
servant not  being  in  the  same  post,  when  the  offence  was  allegedly
committed, though continuing as  a  public  servant,  loses  the  protection
under Section 19(1) of the P.C. Act? Contention of the respondents was  that
sanction under Section 19 of the P.C. Act is not required as the  appellants
have been transferred from the post which they were holding at the  relevant
time.  In support  of  their  plea  that  even  on  transfer/promotion,  the
appellants remain public servant, such  a  sanction  was  required,  it  was
submitted that the object of Section 19  of  the  P.C.  Act  is  to  protect
public servant from harassment and,  therefore,  exercise  of  powers  under
Section 19 of the P.C. Act is not empty formality.   Since  the  Government,
as a sanctioning authority, is supposed to apply  its  mind  to  the  entire
material and evidence placed before it and on examination thereof, it is  to
reach the conclusion as to whether the sanction is accorded or not.  It  was
also argued that sanction is a weapon to ensure discouragement of  frivolous
and vexatious prosecution and is a safeguard for  the  innocent  but  not  a
shield for the guilty.  In support of the aforesaid arguments, reliance  was
placed on State of Himachal Pradesh  v.  Nishant  Sareen[3]  and  Mansukhlal
Vithaldas Chauhan v. State of Gujarat[4].

The aforesaid judgments referred to by  the  appellants  state  the  general
proposition of law and purpose behind Section 19 of the P.C.  Act.   On  the
other hand, the question that needs to be answered  is  concerned,  we  find
that it had same very question  came up for  consideration  in  Abhay  Singh
Chautala  v.  Central  Bureau  of  Investigation[5].   In  that  case,   the
appellants were MLAs when charges under the P.C.  Act  were  framed  against
them.  However the charges pertained to wrongdoing committed during  earlier
periods of time during which they had also been MLAs or  MPs.   The  charges
did not pertain to their current tenure as MLAs  during  which  the  charges
were framed and trial initiated.  On the date when charges  were  framed  no
sanction under Section 19, P.C. Act was obtained.   An  objection  regarding
the absence of sanction was raised before the  Special  Judge,  who  in  the
common order held that the charge-sheet did not contain the allegation  that
the appellants had abused their current office as MLAs  and,  therefore,  no
sanction was necessary.  The High Court by the impugned order under  Section
482 Cr.P.C. did not interfere with the said  prosecution.   This  Court  put
its imprimatur to the aforesaid view of the High  Court  thereby  dismissing
the appeals.  After discussing catena of judgments, it was  held  that  even
when the appellants in that case held  more  than  one  offices  during  the
check period which they are alleged to have abused; however, there  will  be
no requirement of sanction if on the date  when  the  cognizance  is  taken,
they are not continuing to hold that very office.   It  was  held  that  the
relevant time is the date on which the cognizance  is  taken.   If  on  that
date, the appellant was not a public servant, there was no question  of  any
sanction.  It was also held that  even  if  he  continues  to  be  a  public
servant but in a different capacity or is holding a  different  office  than
the one which is alleged to have  been  abused,  still  there  would  be  no
question of sanction.  This can be found from the reading of  paragraphs  54
and 56 of the judgment which we reproduce below:
“54. The learned Senior Counsel tried  to  support  their  argument  on  the
basis of the theory of “legal fiction”. We do not see as to how  the  theory
of “legal fiction” can work in this case. It may be that the  appellants  in
this case held more than one offices during the check period which they  are
alleged to have abused; however, there will be no question of any  doubt  if
on the date when the cognizance is taken, they are not  continuing  to  hold
that very office. The relevant time, as held in S.A. Venkataraman  v.  State
[AIR 1958 SC 107 : 1958 Cri LJ 254], is the date on which the cognizance  is
taken. If on that date, the appellant is not a public  servant,  there  will
be no question of any sanction. If he continues to be a public  servant  but
in a different capacity or holding a different office than the one which  is
alleged to have been abused, still there will be  no  question  of  sanction
and in that case, there will also  be  no  question  of  any  doubt  arising
because the doubt can arise only when the sanction is necessary. In case  of
the present appellants, there was no  question  of  there  being  any  doubt
because basically there was no  question  of  the  appellants'  getting  any
protection by a sanction.

                          xx          xx         xx

56.  Thus, we are of the clear view  that  the  High  Court  was  absolutely
right in relying on the decision in Prakash Singh Badal v. State  of  Punjab
to hold that  the  appellants  in  both  the  appeals  had  abused  entirely
different office or offices than the one which  they  were  holding  on  the
date on which cognizance was taken and, therefore, there  was  no  necessity
of sanction under Section 19 of the Act as held in K. Karunakaran  v.  State
of Kerala and the later decision in Prakash Singh Badal v. State of  Punjab.
 The appeals are without any merit and are dismissed.”

In the aforesaid  extracted  paragraph  54  there  is  a  reference  to  the
judgment of this Court in S.A. Venkataraman.  In that case,  the  issue  was
considered in the context of the P.C. Act wherein  the  relevant  provision,
corresponding to Section  19  of  the  present  P.C.  Act,  was  Section  6.
Interpreting the provisions of Section 6, this Court held that even  when  a
purported offence is committed by a person at  the  time  he  was  a  public
servant, but he ceases to be a public servant on the  date  when  cognizance
of the offence alleged to have been committed is  taken  by  the  Court,  no
such sanction was required.

Likewise, in the case of Prakash Singh Badal & Anr. v.  State  of  Punjab  &
Ors.[6], the contention of the appellant in that  case  that  permission  to
obtain sanction throughout service  was  necessary,  was  negatived  in  the
following manner:
“24.  The plea is clearly untenable as Section 19(1) of the Act is time  and
offence related.

            Section 19(1) of the Act has been quoted above.

25.  The underlying principle of Sections 7, 10, 11, 13  and  15  have  been
noted above. Each of the above sections indicates that  the  public  servant
taking  gratification  (Section  7),  obtaining   valuable   thing   without
consideration (Section 11), committing acts of criminal misconduct  (Section
13) are acts performed under the colour of authority but  which  in  reality
are for the public servant's own pleasure or benefit. Sections  7,  10,  11,
13 and 15 apply to aforestated acts. Therefore, if a public servant  in  his
subsequent position is not accused of any such criminal acts then  there  is
no question of invoking the mischief rule.  Protection  to  public  servants
under Section 19(1)(a) has to be confined to the time-related criminal  acts
performed under the colour or authority for public  servant's  own  pleasure
or benefit as categorised under Sections 7, 10, 11, 13 and 15. This  is  the
principle behind the test propounded by this  Court,  namely,  the  test  of
abuse of office.”

It clearly follows from the reading of the judgments in the cases  of  Abhay
Singh Chautala and Prakash Singh  Badal  that  if  the  public  servant  had
abused entirely different office or  offices  than  the  one  which  he  was
holding on the date when cognizance was taken, there  was  no  necessity  of
sanction under Section 19 of the P.C. Act.   It  is  also  made  clear  that
where the public servant had abused the office which he held  in  the  check
up period, but had ceased to hold 'that office' or was holding  a  different
office, then sanction would not be necessary.  Likewise, where  the  alleged
misconduct is in some different capacity than the one which is held  at  the
time of taking cognizance, there will be no necessity to take the  sanction.
 However, one discerning factor which is to be noted is that in  both  these
cases the accused persons were public servants in the capacity of Member  of
Legislative Assembly / by virtue of political office.  They were not  public
servants as government employees.  However,  detailed  discussion  contained
in these judgments would indicate  that  the  principle  laid  down  therein
would encompass and cover  the  cases  of  all  public  servants,  including
government employees who may otherwise be having  constitutional  protection
under the provisions of  Article  309  and  311  of  the  Constitution.   To
illustrate, we may quote the following passage from  the  judgment  of  this
Court in the case of R.S. Nayak v.  A.R.  Antulay[7],  which  is  reproduced
along with other paragraphs from the judgment in Prakash Singh Badal:
“23. Offences prescribed in Sections 161, 164 and 165 IPC and Section  5  of
the 1947 Act have an intimate and inseparable relation with the office of  a
public servant. A public servant occupies office which renders him a  public
servant and occupying the office carries with it  the  powers  conferred  on
the office. Power generally is not conferred on an individual person.  In  a
society governed by rule of law power is conferred on office or acquired  by
statutory status and the individual occupying the office or on  whom  status
is conferred enjoys the power of office or power flowing  from  the  status.
The holder of the office alone would have opportunity  to  abuse  or  misuse
the office. These sections codify a well-recognised truism  that  power  has
the tendency to corrupt. It is the holding of  the  office  which  gives  an
opportunity to use it for corrupt motives. Therefore,  the  corrupt  conduct
is directly attributable and flows from the power conferred on  the  office.
This interrelation and interdependence between individual and the office  he
holds is substantial and not severable. Each of the three  clauses  of  sub-
section (1) of Section 6 uses the  expression  “office”  and  the  power  to
grant sanction is conferred on the authority competent to remove the  public
servant from his office and Section 6  requires  a  sanction  before  taking
cognizance of offences committed by public servant.  The  offence  would  be
committed by the public servant by misusing or abusing the power  of  office
and it is from that office, the authority must be competent  to  remove  him
so as to be entitled to  grant  sanction.  The  removal  would  bring  about
cessation of interrelation between the office and abuse  by  the  holder  of
the office. The link between power with opportunity to abuse and the  holder
of office would be severed by removal from office. Therefore, when a  public
servant is accused of an offence of taking gratification  other  than  legal
remuneration for doing or forebearing to do an  official  act  (Section  161
IPC) or as a public servant abets offences  punishable  under  Sections  161
and 163 (Section 164 IPC) or as public  servant  obtains  a  valuable  thing
without consideration from person concerned in any  proceeding  or  business
transacted by such public servant (Section  165  IPC)  or  commits  criminal
misconduct as defined in Section 5 of the 1947 Act, it is  implicit  in  the
various offences that the public servant has misused or abused the power  of
office held by him as public servant. The expression “office” in  the  three
sub-clauses of Section 6(1) would  clearly  denote  that  office  which  the
public servant misused or abused for corrupt motives for which he is  to  be
prosecuted and in respect of which a sanction to prosecute him is  necessary
by the competent authority entitled to remove him from that office which  he
has abused. This interrelation between the office and its abuse  if  severed
would render Section  6  devoid  of  any  meaning.  And  this  interrelation
clearly provides a clue to the understanding of the provision in  Section  6
providing for sanction by a competent authority who would be able  to  judge
the action of the public  servant  before  removing  the  bar,  by  granting
sanction, to the taking of the cognizance of offences by the  court  against
the public servant. Therefore, it unquestionably follows that  the  sanction
to prosecute can be given by an authority competent  to  remove  the  public
servant from the  office  which  he  has  misused  or  abused  because  that
authority alone would be able to know whether there has  been  a  misuse  or
abuse of the office by the public servant and not some rank outsider.  By  a
catena of decisions, it has been held that the authority entitled  to  grant
sanction must apply its mind to the facts of the  case,  evidence  collected
and other incidental facts before according sanction. A  grant  of  sanction
is not an idle formality but a solemn and sacrosanct act which  removes  the
umbrella  of   protection   of   Government   servants   against   frivolous
prosecutions and the aforesaid  requirements  must  therefore,  be  strictly
complied with before  any  prosecution  could  be  launched  against  public
servants. (See Mohd. Iqbal Ahmad v. State of A.P. [(1979) 4 SCC 172  :  1979
SCC (Cri) 926 : AIR 1979 SC 677 : (1979)  2  SCR  1007]  )  The  Legislature
advisedly conferred power on the authority competent to  remove  the  public
servant from the office to grant sanction for the obvious reason  that  that
authority alone would be able, when facts and  evidence  are  placed  before
him to judge whether a serious offence is committed or  the  prosecution  is
either frivolous or speculative. That authority alone would be competent  to
judge whether on the facts alleged, there has been an  abuse  or  misuse  of
office held by the public servant. That authority would be in a position  to
know what was the power conferred on the office  which  the  public  servant
holds, how that power could be abused for corrupt motive and  whether  prima
facie it has been so done. That competent authority  alone  would  know  the
nature and functions discharged by the public  servant  holding  the  office
and whether the same  has  been  abused  or  misused.  It  is  the  vertical
hierarchy between the authority competent to remove the public servant  from
that office and the nature of the office held by the public servant  against
whom sanction is sought which would indicate a  hierarchy  and  which  would
therefore, permit inference of knowledge about the functions and  duties  of
the office and its misuse or abuse by the public servant. That  is  why  the
Legislature clearly provided that that authority alone  would  be  competent
to grant sanction which is entitled to remove  the  public  servant  against
whom sanction is sought from the office.”

In the case of  the  present  appellants,  there  was  no  question  of  the
appellants' getting any protection  by  a  sanction.   The  High  Court  was
absolutely right in relying on the decision in Prakash Singh Badal  to  hold
that the appellants in  both  the  appeals  had  abused  entirely  different
office or offices than the one which they were holding on the date on  which
cognizance was taken and, therefore, there  was  no  necessity  of  sanction
under Section 19, P.C. Act.  Where the public servant had abused the  office
which he held in the check period but had ceased to hold  “that  office”  or
was holding a different office, then a  sanction  would  not  be  necessary.
Where the alleged misconduct is in some  different  capacity  than  the  one
which is held at the time of taking cognizance, there will be  no  necessity
to take the sanction.
Insofar as argument of the appellants that there is no specific averment  in
the complaint for having committed the alleged act by them is concerned,  we
are unable to agree with  this  argument.  As  already  pointed  out  above,
allegations against these two appellants  are  that  after  conducting  spot
inspection by accused No.1 on 17.01.2003,  first  appellant  (accused  No.3)
who was working as Tehsildar had recommended it on same day  and  thereafter
second appellant (accused No.6) who was working  as  Assistant  Commissioner
had given an endorsement on the very next day to the  effect  that  property
is not the subject matter of acquisition.  On  this  basis,  it  is  alleged
that these officials have abused their official  position.   We  may  record
that learned counsel for the appellants  have  contended  that  they  merely
acted on the court decree.  However, it may be two innocent  explanation  on
the facts of this case as alleged in the case  inasmuch  as  it  is  alleged
that these two appellants did not bother to find out  that  there  were  two
decrees in two different names in respect of same land and further  that  10
acres of land in question had already been acquired and  could  not  be  the
subject matter of decree.  These were the aspects which were,  prima  facie,
to be  looked  into  by  these  appellants.   On  the  basis  the  aforesaid
purported defence, therefore, the proceedings cannot be quashed.   It  would
be a matter of evidence on the basis of which culpability of the  appellants
shall be judged.

The aforesaid discussion leads us to the conclusion  that  the  judgment  of
the High Court though on the issue of obtaining the sanction at the time  of
taking cognizance may not be correct insofar  as  question  No.1  formulated
above is concerned, in the facts of the present case,  insofar  as  question
No.2 is concerned, it is rightly decided.  Effect thereof would be  to  hold
that sanction was not needed as  the  appellants,  at  the  time  of  taking
cognizance, were not  holding  the  post  which  is  alleged  to  have  been
misused.

As a consequence, these appeals fail and are,  accordingly,  dismissed  with
no order as to costs.


                             .............................................J.
                                                                (A.K. SIKRI)



                            ..............................................J.
                                                               (N.V. RAMANA)
NEW DELHI;
SEPTEMBER 06, 2016.
-----------------------
[1]   (2013) 10 SCC 705
[2]   (2012) 10 SCC 517
[3]   (2010) 14 SCC 527
[4]   (1997) 7 SCC 622
[5]   (2011) 7 SCC 141
[6]   (2007) 1 SCC 1
[7]   (1984) 2 SCC 183

The Commissioner of Commercial Taxes, vide order dated 23.1.1999 opined that bitumen emulsion is an unclassified commodity and, therefore, is excisable to tax at the rate of 12.5% as it would fall under the residuary Entry.=when bitumen is available in the liquid form, it is known as bitumen emulsion and is commonly known as bitumen when it is available in the solid form; and both the commodities are understood in the same manner in the commercial world and the end use is the same and, therefore, the rate of tax to be determined has to be the same as prescribed for bitumen.= What is relevant is the classification. In this context, the verdict in Osnar Chemical Private Limited (supra) is significant. The said authority refers to two other variants of bitumen, namely, polymer modified bitumen and crumbled rubber modified bitumen which are created by the process of mixing of polymer and additive to bitumen. It has been held that the aforesaid processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. It has been ruled therein that there is a fallacy in the argument raised by the Revenue that bitumen per se would only include its solid hard form which melts at high temperature and not bitumen emulsion. The two varieties and types carry the same composition, do not differ in character and have the same commercial identity i.e. bitumen. That apart, the use or end use test is also satisfied.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.2650  OF 2016
                  [Arising out of SLP(C) No. 22191 OF 2013]



Commissioner of Commercial Tax, U.P.          ... Appellant

                                   Versus

M/s. A.R. Thermosets (Pvt.) Ltd.              ... Respondent





                               J U D G M E N T



Dipak Misra, J.

      In this appeal, by special leave, the Revenue has called  in  question
the legal sustainability of the judgment and order passed by the High  Court
of Judicature at Allahabad in Commercial  Tax  Revision  no.  1156  of  2009
preferred by the assessee-respondent under Section 11 of the U.P. Trade  Tax
Act, 1948 (for brevity, ‘the 1948 Act’) read with Sections 81 and 58 of  the
VAT Act, 2008 (for short, ‘the VAT Act’) whereby the  learned  Single  Judge
has allowed the revision negativing the stand put  forth  in  opposition  by
the State to the stance highlighted by the assessee.

2.    The facts on which the controversy rests is in a narrow  compass.  The
respondent manufactures “bitumen emulsion”.  It filed an application  before
the Commissioner, Commercial Taxes, Lucknow, U.P. under Section  59  of  the
VAT Act seeking a clarification about the rate  of  tax  applicable  to  the
sales of bitumen emulsion.   The  Commissioner  of  Commercial  Taxes,  vide
order dated 23.1.1999  opined  that  bitumen  emulsion  is  an  unclassified
commodity and, therefore, is excisable to tax at the rate  of  12.5%  as  it
would fall under the residuary Entry.

3.     Being  aggrieved  by  the  order  dated  23.1.1999,  the   respondent
preferred Appeal No. 6 of  2009  under  the  VAT  Act  before  the  Tribunal
Commercial Taxes, U.P., Lucknow (for short ‘the tribunal’) which  was  heard
by the Full Bench.  It was contended before the tribunal  by  the  assessee-
appellant therein that bitumen as a commodity is taxed at  4%  under  Serial
no. 22 Part A of Schedule II to the VAT Act and bitumen is  found  in  solid
state and to bring it in the liquid form, water is  added  to  it  and  very
little quantity is used in the process.  Elaborating  the  said  submission,
it was urged that when bitumen is available in the liquid form, it is  known
as bitumen emulsion and is commonly known as bitumen when  it  is  available
in the solid form; and both the  commodities  are  understood  in  the  same
manner in the commercial world and the end use is the same  and,  therefore,
the rate of tax to be determined has  to  be  the  same  as  prescribed  for
bitumen.
4.     Be it stated, as per Notification  No.  100  dated  15.1.2000  issued
under the erstwhile U.P. Trade Tax Act, 1948,  bitumen  was  taxed  at  20%.
Under the VAT Act, bitumen has been classified under Part A of  Schedule  II
and the tax leviable is 4%.  Before  the  tribunal,  the  assessee-appellant
produced  reports  from  Harcourt  Butler  Technical  Institute,  Kanpur  to
bolster the stand that there is no difference between  the  two  commodities
and they are to be categorised as one  item,  if  common  parlance  test  is
applied.   To  buttress  the   submissions,   the   assessee   relied   upon
  CST v. Ashok Grah Udyog Kendra Private Ltd.[1], CST v. Bechu  Ram  Kishori
Lal[2], and M/s Indodan Milk Products v.  Commissioner  Sales  Tax[3].   The
tribunal referred to one of its earlier decisions in appeal no. 17  of  2000
decided on 3.4.2009 and on the basis of reasons ascribed  therein  dismissed
the revision.
5.    The dissatisfaction caused by the said adjudication,  constrained  the
assessee to approach the High Court in Commercial Tax Revision no.  1156  of
2009.  The High Court formulated the point in issue which reads as follows:-


“Whether the Bitumen and Bitumen Emulsion are one  and  the  same  commodity
for the purposes of interpretation of Entry No. 22 Schedule  II  Part  A  of
the U.P. Value Added Tax Act,  2002  as  was  originaly  enacted  i.e.  upto
enforcement of notification no. 2758 dated 29.9.2008?

6.    The learned Single Judge took note of the various technical  materials
from the Government approved laboratory which had been  brought  before  the
tribunal,  and  opined  that  the  controversy  had  not   been   appositely
appreciated by the  tribunal,  for  the  materials  clearly  establish  that
bitumen and bitumen emulsion is the same thing.   The  High  Court  analysed
the concept of end use, i.e. the end result of bitumen emulsion and came  to
hold  that  bitumen  emulsion  makes  the  bitumen  easily  usable  in   its
emulsified form and both the items are used in  the  construction  of  road,
etc.  It further opined that the identity, commercial character and  use  of
both the things are the  same,  though  the  tribunal,  despite  having  the
material before it, proceeded to record  findings  otherwise.   That  apart,
the High Court took note of the decision of this Court  in  Commissioner  of
Central  Excise,  Bangalore  v.  Osnar  Chemical  Private   Limited[4]   and
ultimately ruled that it could not be said  that  mixing  of  some  material
would amount  to  manufacture  unless  it  results  in  a  change  when  the
commodity concerned cannot  be  recognised  as  an  original  commodity  but
rather new and distinct article emerges having different commercial use  and
identity.  On the basis of the aforesaid analysis, the  High  Court  allowed
the revision and set aside the orders of the forums below.


7.    We have heard  Mr.  Pawan  Shree  Agarwal,  learned  counsel  for  the
appellant and Mr. Kavin Gulati, learned senior counsel along  with  Mr.  Avi
Tandon, learned counsel for the respondents.
8.    Criticising the view of  the  High  Court,  it  is  submitted  by  Mr.
Agarwal that it has erred in opining that bitumen  in  its  emulsified  form
also remains bitumen.  He has drawn inspiration from the  language  used  in
Section 2(t) of the VAT Act to structure the submission that in the  process
of conversion, manufacturing takes place.  It is his further  argument  that
the decision in Osnar Chemical Private Limited (supra) is not applicable  to
the present controversy as the said decision was rendered in the context  of
the  Central  Excise  Act,  1944  whereas  the  lis  herein  hinges  on  the
definition of manufacturing.  For the said purpose, he has relied  upon  the
authority in Sonebhadra Fuels v. Commissioner, Trade Tax, U.P.,  Lucknow[5].
 Learned counsel for the Revenue contends that when the  view  expressed  by
the lower authorities is neither perverse nor arbitrary, the High  Court  in
exercise of its revisional jurisdiction should not have interfered with  the
findings and for the said purpose he has commended us to  the  authority  in
N. Eswari v. K. Swarajya Lakshmi[6].   Mr. Agarwal has  canvassed  that  the
intention of the legislature, as is manifest,  is  to  charge  a  particular
rate of tax on  bitumen  and  it  remotely  does  not  conceive  of  bitumen
emulsion and the Court should not enlarge the scope of  legislation  or  the
intention of it by adding a word to the term in the statute,  which  is  not
permissible, for a taxing statute has  to  be  understood  what  is  clearly
stated therein and not what is intended to be said.
9.    Mr. Gulati, learned senior  counsel  appearing  for  the  assessee  in
support of the view expressed by the High  Court  would  contend  that  four
principles relating to interpretation of  entries  and  taxing  statute  are
required to be considered in the present case.   According  to  Mr.  Gulati,
they are (a) plain meaning to be given to the taxing provision;  (b)  burden
to prove classification in a particular Entry is always on the Revenue;  (c)
any ambiguity has to be resolved in favour of the assessee; and  (d)  resort
to residuary Entry is to be taken as a last measure.   He  would  put  forth
that in the instant case, the Revenue, prior to taxing the respondent  under
the residuary Entry, did not place any evidence before the  Commissioner  or
the tribunal to show that the emulsified  bitumen  is  not  covered  by  the
expression bitumen as found in Entry 22 of Part A of Schedule II to the  VAT
Act.  It is urged by him, whether the activity of mixing water with  bitumen
amounts to  manufacture  under  Section  2(t)  of  the  VAT  Act  is  wholly
irrelevant for deciding the issue at hand.  It is, according to Mr.  Gulati,
where  goods  are  purchased  on  paying  tax  and  process  thereafter   is
undertaken, a question often arises as to whether such  process  amounts  to
manufacture or not, and if it amounts to manufacture, then it  would  enable
the department to levy tax again as the commodity in different, a  new  one,
for the purposes of this Act and the tax can be imposed as  a  single  point
levy again, but in the case at hand,  that is not  the  situation.   Learned
senior  counsel  further  submits  that  every  process  involved   in   the
manufacture of a commodity does not relate to manufacture of a  new  product
as the end product  continues  to  retain  the  character  of  the  original
product.  According to him, solely because some  process  has  been  carried
out, it cannot  be  held  that  a  new  product  has  come  into  existence.
Expatriating the said submission, it  is  put  forth  that  the  process  of
heating on high degree temperature and then adding water  to  it  to  obtain
emulsified bitumen does not alter the  basic  nature  of  bitumen  but  only
brings a change in physical appearance  of  the  product.   He  has  heavily
relied on Osnar Chemical Private Limited (supra) to highlight  that  bitumen
would include bitumen emulsion.
10.   The principal  controversy,  as  we  perceive,  is  “whether  “bitumen
emulsion” is covered within Entry 22 of Schedule II of  the  VAT  Act  which
only refers to “bitumen””.    According  to  Academic  Press  Dictionary  of
Science and Technology, “bitumen” means:-
“Bitumen Geology and naturally occurring flammable  substance  mainly  of  a
mixture of hydrocarbons such as petroleum or asphalt.

Materials 1. Originally, a type  of  asphalt  occurring  naturally  in  Asia
Minor. 2. Any  similar  black,  sticky  mixture  of  hydrocarbons  occurring
naturally or pyrolytically in  the  atmosphere  and  completely  soluble  in
carbon disulfide: obtained mainly from natural oxidized  petroleum  products
or from a petroleum distillation process.”


11.   The McGraw-Hill Concise Encyclopedia of Science  &  Technology  (Third
Edition) defines “bitumen” as under:-

“Bitumen A term used  to  designate  naturally  occurring  or  pyrolytically
obtained substances of dark to black color  consisting  almost  entirely  of
carbon and hydrogen with very little oxygen, nitrogen, and sulphur.  Bitumen
may be of variable hardness  and  volatility,  ranging  from  crude  oil  to
asphaltites and is largely soluble in carbon disulfifde.”

12.    The  above  definitions  when  appreciated  clearly  show  that  they
expressively define the word  “bitumen”  as  a  commodity  and  explain  its
chemical composition, colour or appearance and qualities and the process  by
which it comes into existence.
13.   Bitumen emulsion, as per Indian standards  ICS  293.08.0.20  published
by the Bureau of Indian Standards is a destruction of  very  fine  particles
in an aqueous medium.  Harcourt Butler Technological Institute,  Kanpur,  in
its report dated 11.4.2008 states that:-
“The components  derived  from  fractional  distillation  of  petroleum,  at
various temperature levies, are (I) Gas (II) Naphtha, (III)  Kerosene,  (IV)
Diesel and lubricating oil, (V) Bitumen and furnace oil, and  (VI)  residue.
This  bitumen  is  known  as   penetration   grade   bitumen   because   the
specification, by which it is designated, is obtained from  the  penetration
test.  There could be two other forms of Bitumen: Namely  (I)  Emulsion  and
(II) Cutback.  In the emulsion, bitumen is in the suspension from  as  small
globules in water, whereas in cutback, the bitumen is dissolved in  suitable
solvent.  In bituminous construction, the choice between  penetration  grade
bitumen and the bitumen emulsion is made depending upon  the  factors  like,
weather conditions, availability, economy and available construction time.”

14.   The said report discussing about its composition explicates:-
“Bitumen is basically a hydrocarbon with 10% by weight of atoms of  sulphur,
nitrogen and oxygen, attached to hydrocarbon molecules.  The carbon  content
in  bitumen  is  80-87%.   Three  basic  components  of  bitumen   are   (I)
asphaltene, (II) maltene and (III) carbine.  The chemical bonds  in  bitumen
are weak and break when heat is applied.  When it is cooled, it  comes  back
to its original structure, but not necessarily the same as before.”

15.   The said report has further proceeded to state that emulsion is a  two
phase system consisting of two immiscible liquids, one  being  dispersed  as
finite globules in the other.  In bitumen  emulsion,  bitumen  globules  are
suspended as emulsion in water with the help of emulsifiers, which are  used
to stabilize the emulsion.  Emulsifiers  break  into  ions  and  charge  the
bitumen particles.  Charged particles repel each other  and  the  suspension
remains stable and  this  stability  remains  as  long  as  water  does  not
evaporate, freeze or emulsifier does not break.
16.   About the characterization of the bitumen, report states:-
“Bitumen materials have certain characteristics such  as  (I)  waterproofing
(II) durability,  (III)  resistance  to  strong  acids  and  (IV)  cementing
properties.  At normal temperature, bitumen is semi-solid and takes time  to
flow.  At higher temperatures, it behaves like a viscous liquid, whereas  at
very low temperature, is brittle as glass. Bitumen  is  believed  to  behave
‘viscoelastically’ at the standard operating temperature at highways.”

17.    According to the report when a state of liquefaction is achieved  and
the same is constant for a longer period,  it  can  be  used  under  diverse
moisturic conditions and has a very  wide  range  of  applications  such  as
surface dressing of low volume roads, curing purposes base for  high  volume
roads, surface dressing, tack  coat,  premix  carpets,  soil  stabilization,
etc.  The report has clearly stated that the use of bitumen  is  because  of
its characteristics which includes cementing properties.  Be it  noted,  the
use of both bitumen and  bitumen  emulsion  is  similar,  that  is,  surface
dressing,  tack  coat,  premix  carpets,  soil   stabilization,   etc.   The
concluding remarks of the report is extracted below:-
“Bitumen and Emulsion are two forms of bituminous binders which  serve  some
common purposes in road construction and maintenance.  Bitumen and  emulsion
are selected for various applications depending upon  some  parameters  like
weather  conditions,  availability  of  material,   economic   aspects   and
availability  of  construction  time.   Bitumen  needs  preheating   whereas
emulsion is ready to use.  It has been observed from previous  studies  that
the physical properties of the emulsion after natural sun drying are  almost
similar to that of bitumen as the water present.  In the  binder  evaporates
and makes  the  matrix  harder  as  obtained  with  the  bitumen.   It  may,
therefore, be concluded that bitumen and emulsion may be treated at  par  as
far as their significance for application.   In  their  respective  area  is
concerned.”

18.   A reading  of  the  aforesaid  definitions  and  the  scientific  text
clearly reveal that bitumen in its original form is  solid  but  melts  when
heated, for it  is  used  in  molten  stage.   There  is  no  difficulty  to
appreciate that bitumen  emulsion  comes  into  existence  when  bitumen  is
treated with emulsifiers and other chemicals to attain a  liquid  form.   It
has a huge advantage and add benefit because it is  not  to  be  heated  and
detained in its liquid form and has better stability and  thus,  saves  time
and cost components.  That apart,  it  ensures  its  use  at  the  stage  of
application.  Needless to say it is comparatively less  hazardous.   Bitumen
consists of four forms of variants, namely, solid bitumen, polymer  bitumen,
crumbler rubber modified bitumen and bitumen  emulsion.  The  stand  of  the
Revenue is that the word “bitumen” must be conferred a  narrow  meaning  for
the reason that the legislature has not thought it appropriate  to  use  the
prefix or suffix like “all”, in all forms  or  of  all  kinds.   It  may  be
immediately clarified that bitumen  is  a  generic  expression  which  would
include different types of bitumen.  Revenue, however,  as  stated  earlier,
intends to apply it restrictively.  The said submission  has  a  fundamental
fallacy.  Entry 22 does not exclude or specify that  it  would  not  include
bitumen of all types and varieties.  This is not the  principle  or  precept
applied to interpret the entries under the Schedule of the Act.  We will  be
deliberating in detail on the said aspect at a later stage.  Prior to  that,
we would like to advert to certain other aspects.
19.   At the very inception, we think it absolutely  seemly  to  state  that
the nature and composition of the product or the  good  and  the  particular
entity in the classification table is important.  Matching of the good  with
the Entry or Entries in the Schedules is tested on the basis of identity  of
the goods in question with the  Entry  or  the  contesting  entries  and  by
applying the common parlance test, i.e., whether the goods as understood  in
commercial or business parlance are identical or similar to the  description
of the Entry.  Where such similarity in popular  sense  of  meaning  exists,
the generic entity would be construed as including the  goods  in  question.
Sometimes on certain circumstances the end use test, i.e., use of  the  good
and its comparison with the Entry is applied.
20.   The Entry in question uses the  word  “bitumen”  without  any  further
stipulation or qualification.  Therefore, it would, in our opinion,  include
any product which  shares  the  composition  identity,  and  in  common  and
commercial parlance is treated as bitumen and can be used as bitumen.   When
we apply the three tests, namely, identity, common parlance and end  use  to
the goods and the Entry in question, bitumen emulsion would  be  covered  by
the Entry bitumen. It is worthy to note that bitumen  emulsion  matches  the
Entry as it is only one of the varieties of bitumen.   Bitumen  emulsion  is
processed  bitumen,  but  the  process  has  not  changed  its  composition,
commercial identity or its use.  Bitumen emulsion is regarded  and  performs
the same function as bitumen.   As  a  result  of  processing,  neither  the
primary character nor the composition is lost.   Emulsification  only  eases
and provides proficiency to the use of application of  bitumen.   Hence,  in
popular and commercial sense,  bitumen  emulsion  is  nothing  but  bitumen,
which is in liquid form and is user friendly.
21.   It is perceivable that the legislature has  used  the  word  “bitumen”
and treated it as a separate entity.  As we notice,  it  has  not  indicated
that this was done with the intention and purpose to exclude  some  type  or
variety of bitumen.  All bitumen  products,  which  share  and  have  common
composition and commercial entity, and meet the popular parlance  test,  is,
therefore, meant to be covered by the said Entry. In the instant case,  even
the end use test is satisfied. There is nothing in the Entry to suggest  and
show that the Entry is required to be  given  a  restrictive  and  a  narrow
meaning.
22.   In this regard, another aspect needs to be noted.   The  Revenue  does
not rely upon another Entry under which bitumen emulsion can be taxed.   The
Revenue relies upon the residuary Entry  which  would  only  include  goods,
which  cannot  be  covered  under  any  other  Entry  in  the  schedule   on
application of the three-fold criteria.  In  the  State  of  Maharashtra  v.
Bradma of  India  Limited[7],  the  Court  had  observed  that  the  general
principle is that specific Entry would override a general  Entry.  Referring
to the decisions in the case of Collector of  Central  Excise,  Shillong  v.
Wood Craft Products Ltd.[8], it has been ruled that resort can be made to  a
residuary heading only when  by  liberal  construction  the  specific  Entry
cannot cover the goods in question.  Referring to Entry No. 90 in  the  said
case, which covered tabulating, calculating, cash registering, indexing  and
data processing, etc, other than computer machines, it  was  held  that  the
words did not contain words of limitation and would cover every  species  of
cash registering machines, irrespective of their mode of operation.  In  the
absence of any limitation or qualification as to the different kind of  cash
registering machines, there was no reason for such qualification  and  limit
the Entry to  a  particular  kind  of  cash  registering  machine.  However,
computers had been specifically excluded and were separately dealt  with  in
Entry 97(a). The assessee, who was manufacturing electronic  cash  registers
would, therefore, be covered by Entry 90 and not by the  Entry  relating  to
computers.  A similar opinion has been expressed in Hindustan  Poles  Corpn.
v. Commissioner of Central Excise, Calcutta[9] stating that residuary  Entry
is made to cover only those category of goods  which  clearly  fall  outside
the ambit of the main Entry.  The opinion proceeds  further  to  state  that
unless the Revenue can establish that  the  goods  in  question  can  by  no
conceivable process of reasoning be brought under any of the  tariff  items,
resort cannot be made to the residuary Entry.
23.    In this context, reference  to  the  authority  in  Commercial  Taxes
Officer v. Jalani Enterprises[10] would be profitable.  While  dealing  with
the question of sales tax/VAT under the Rajasthan  Sales  Tax  Act,  it  was
held that if from records it was established that the  product  in  question
could be brought under a specific Entry, then there was no  reason  to  take
resort to the residuary Entry.  Revenue cannot be  permitted  to  travel  to
the residuary Entry when a product can be covered under a specific Entry.
24.   In the present context, when the word “bitumen” has  been  used  as  a
generic expression, it would be erroneous not to cover  a  product  that  is
only  a  type  or  form  of  bitumen   and   retains   all   its   essential
characteristics, and treat it as covered by  the  residuary  Entry  by  some
kind of ingenuous reasoning. Taking it outside the purview of  the  specific
Entry is incorrect.
25.   At this juncture, we may refer to certain pronouncements commended  to
us by the learned counsel for the appellant. In  Collector  of  Customs  and
others v. Kumudam Publications (P) Limited and others[11],  while  adverting
to the issue of classification it  has  been  held  that  it  would  not  be
correct to say that in no case can the end use or function of the  goods  be
relevant in the question of classification,  as  was  held  in  Indian  Tool
Manufacturers v. Asstt. Collector of Central Excise, Nasik  and  others[12].
The decision in Commissioner of Central  Excise,  Cochin  v.  Mannampalakkal
Rubber  Latex  Works[13]  emphasizes  and  holds  that  in  the  matters  of
classification, “composition test” is  important  test  and  the  “end  user
test” would only apply if the Entry  says  so.   We  have  referred  to  the
aforesaid authorities for sake of completeness only because we have  applied
the “composition test” as well as the “commercial or common  parlance”  test
in addition to the “end use test”.
26.   Reliance placed by  the  Revenue  on  the  decision  in  the  case  of
Hindustan  Aluminium  Corporation  Ltd.  v.  State  of  Uttar  Pradesh   and
another[14], is of no assistance, for  in  the  context  of  the  particular
notification it was held  that  aluminium  ingots,  billet,  roll  products,
extrusion, etc. would not be covered by the exemption, which was granted  to
all kinds of minerals, ore, metals or alloys, including sheets  and  circles
used in  the  manufacture  of  brasswares  and  scraps.   In  this  context,
referring to Section 3A of the U.P. Sales Tax Act and  the  notification  as
applicable, it was held that the earlier notifications issued from  time  to
time  would  show  that  the  expression  “metal”  had  been  employed  with
reference to metal in its primary sense.  The principle  laid  down  in  the
said authority is in the context in issue and is based  upon  the  schematic
arrangement indicated and specified in the notification under  consideration
therein.  That  apart,  the  said  decision  also  emphasizes  that  a  word
describing a  commodity  in  a  sales  tax  statute  should  be  interpreted
according to its popular sense and words of everyday use must  be  construed
not in their scientific or technical sense,  but  as  understood  in  common
parlance.
27.   We have also been commended to a judgment of the Customs,  Excise  and
Service Tax Appellate Tribunal in Allied  Bitumen  Complex  (India)  Private
Limited v. Collector of Central Excise, Calcutta – 1[15], which  holds  that
conversion of bitumen into bitumen aqueous emulsion amounts to  manufacture.
  Per  contra,  the  respondent-assessee  has  relied  on  judgment  of  the
Karnataka High Court in SR Projects Limited v.  Commissioner  of  Commercial
Taxes[16].  However, it is not necessary to dilate on the  said  aspect  for
there is a distinction between what can be  regarded  as  manufacture  under
the Excise Act and what is the sale or transfer of property in  goods  under
the Sales Tax Act and the Value Added Tax Act.  In M.P.  Agencies  v.  State
of Kerala[17], it has been held that the decisions under the Excise Act  may
have some play and relevance, but the  question  of  manufacture  by  itself
would not be per se relevant under the Sales Tax or  Value  Added  Tax  Act.
Thus, there is a distinction between what  is  exigible  to  tax  under  the
excise law and the incidence of tax when the legislation  relates  to  sales
or value added tax.  What  is  relevant  is  the  classification.   In  this
context,  the  verdict  in  Osnar  Chemical  Private  Limited   (supra)   is
significant.  The said authority refers to two other  variants  of  bitumen,
namely, polymer modified bitumen and crumbled rubber modified bitumen  which
are created by the process of mixing of polymer  and  additive  to  bitumen.
It has been held that the aforesaid processes result in improvement  of  the
quality of bitumen  and  there  is  no  change  in  the  characteristics  or
identity of bitumen so as to transform bitumen into a new product having  an
identity, characteristic and use.  It has been ruled therein that  there  is
a fallacy in the argument raised by the Revenue that bitumen  per  se  would
only include its solid hard form which melts at  high  temperature  and  not
bitumen emulsion.  The two varieties and types carry the  same  composition,
do not differ in character  and  have  the  same  commercial  identity  i.e.
bitumen.  That apart, the use or end use test is also satisfied.
28.   In view of the aforesaid analysis, we find the view expressed  by  the
High Court to be absolutely flawless and, accordingly, we  concur  with  it.
Our concurrence with the view of the High Court  entails  dismissal  of  the
appeal and, accordingly, it is so directed. There shall be no  order  as  to
costs.
                                             .............................J.
                                                               [Dipak Misra]



                                              ............................J.
                                                          [Prafulla C. Pant]
New Delhi
September 6, 2016
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[1]     (2004) UPTC 1827
[2]     (1976) 36 STC 236
[3]     (1974) 33 STC 381
[4]    (2012) 2 SCC 282
[5]     (2006) 7 SCC 322
[6]     (2009) 9 SCC 678
[7]    (2005) 2 SCC 669
[8]    (1995) 3 SCC 454
[9]    (2006) 4 SCC 85
[10]   (2011) 4 SCC 386
[11]   (1998) 9 SCC 339
[12]   (1994) Supp (3) SCC 632
[13]   (2007) 217 ELT 161 (SC)
[14]   (1981) 3 SCC 578
[15]   (1997) 90 ELT 374 (Tribunal)
[16]   (2013) 63 VST 49 (Kar)
[17]   (2015) 7 SCC 102